Doctors Challenge Texas Abortion Law

AUSTIN (CN) – In a federal class action, physicians say an unconstitutionally vague Texas law that takes effect Sept. 1 threatens them with criminal prosecution and loss of their medical licenses if they fail to obtain “informed consent” of women who seek abortion, by giving them “visual and auditory depictions of the fetus” beforehand.

Gov. Rick Perry, who is considering running for president, signed Texas House Bill 15 on May 19. The bill “takes effect on September 1, 2011, and applies to any and all abortions performed on or after October 1, 2011,” according to the complaint. The plaintiff class “Texas Medical Providers Performing Abortion Services” is led by Metropolitan OB-GYN PA dba Reproductive Services of San Antonio, and its director, a physician. HB 15 amended a Texas statute enacted in 2003 known as the Women’s Right to Know Act (WRKA), “which mandates that certain procedures and content be used in the informed consent process when the patient is a woman seeking an abortion,” according to the complaint. The 2003 law requires that doctors must inform the woman of the name of the doctor who will perform the abortion, the medical risks associated with the procedure, the probable gestational age of the fetus and the medical risks of carrying a pregnancy to term. “The performing physician or the physician’s agent must also inform the woman that: (1) specified types of medical assistance benefits may be available to her; (2) the father is liable for child support; (3) public and private agencies provide pregnancy prevention counseling and referrals for obtaining birth control; and (4) she has the right to view printed state materials, which are also accessible on the Internet, describing the fetus and listing agencies that offer abortion alternatives. This information must be given to the woman by telephone or in person at least 24 hours before the abortion,” the complaint states. (Citations omitted.) Under current law intentional performance of an abortion in violation of the WRKA constitutes a misdemeanor punishable by a fine of up to $10,000. HB 15 amends the Women’s Right to Know Act by adding a new penalty, which requires the Texas Medical Board to “refuse to renew the license of any physician who violates the WRKA,” the complaint states. In addition, it states that to obtain a woman’s “informed consent,” a doctor or a “certified sonographer” must perform an ultrasound on the woman at least 24 hours before the abortion. “Under the Act the physician who will perform the abortion must ‘display[] the sonogram images in a quality consistent with medical practice in a manner that the pregnant woman may view them,'” the complaint states. (Empty brackets in complaint, with no explanation.) “The physician who will perform the abortion must also describe the fetal image to the pregnant women in great detail,” the complaint states. The doctor also must make the fetal heartbeat, if any, audible for the pregnant woman to hear, and verbally explain it to her. “Prior to the pre-abortion ultrasound, the woman must fill out a certification form indicating that she understands that: (1) Texas law requires she receive a ultrasound prior to receiving an abortion; (2) she has ‘the option to view the sonogram images;’ (3) she has the ‘option to hear the heartbeat;’ and (4) she is ‘required by law to hear [the physician’s] explanation of the sonogram images’ unless she certifies in writing that she falls into one of three limited categories,” according to the complaint. (Brackets in complaint.) “The Act allows the woman to certify that she elects not to hear an explanation of the ultrasound images in only three circumstances: (a) if she is ‘pregnant as a result of a sexual assault, incest or other violation of the Texas Penal Code that has been reported to law enforcement authorities or that has not been reported because [the woman] reasonably believe[s] that doing so would put [her] at risk of retaliation resulting in serious bodily injury;’ (b) if she is a minor obtaining an abortion pursuant to a judicial bypass; or (c) if the ‘fetus has an irreversible medical condition or abnormality, as identified by reliable diagnostic procedures and documented in [the patient’s] medical file.'” (Brackets in complaint.) While the law gives a pregnant woman the option not to view the sonogram, or hear the fetal heartbeat, if any, the “Act also states that the ultrasound images are ‘required to be provided to’ the woman and that ‘consent to an abortion is voluntary and informed only if,’ inter alia, the image is placed in the woman’s view,” the complaint states. “In light of the foregoing, it is not clear under the Act whether: (1) the woman’s choice not to view the ultrasound images relieves the physician of the obligation to place the ultrasound images in the woman’s view; (2) the woman’s choice not to hear the verbal explanation relieves the physician of the obligation to provide that verbal explanation; and (3) the woman’s choice not to hear the heart auscultation relieves the physician of the obligation to make the heart auscultation audible, if present. “In light of these ambiguities, and the harsh penalties and strict liability imposed by the Act, a physician seeking to avoid those penalties, including the risk of losing his or her medical license, will be compelled to: (1) place the ultrasound images in the woman’s view even if the woman has indicated that she does not want to see them; (2) describe the ultrasound images to every woman seeking an abortion, even to a woman who falls in one of the three designated categories and has indicated that she does not want to hear the explanation; and (3) make the heart auscultation audible (either personally or through an agent who is a certified sonographer).” (Parenthesis in complaint.) The class claims, “The Act will impose irreparable harms on patients who seek, and physicians who provide, abortions by depriving them of their constitutional rights to free speech, privacy, equal protection, and due process.” The class seeks declaratory judgment that HB 15 is “unconstitutional and unenforceable” for vagueness, and because it “compels physicians to convey to their abortion patients in a private medical setting unwanted government speech that falls outside accepted and ethical standards and practices for medical informed consent,” and subject patients to this same “unwanted government speech. The Act also discriminates on the basis of gender “by subjecting women to burdens not imposed on men; by perpetuating patronizing and paternalistic stereotypes of women as in need of special ‘protections’ and unable to make medical decisions on their own; and by enforcing the notion that a woman’s primary and proper role is that of mother,” the class says. (Graph 120) Finally, the class claims the Act violates the Equal Protection Clause of the 14th Amendment by treating abortion patients and providers “differently than providers and patients of all other medical services in the state without any basis for the differential treatment other than discriminatory views towards women and animus towards abortion providers and patients who seek their services.” Here are the defendants: Dr. David Leakey, commissioner of the Texas Department of State Health Services, in his official capacity; Mari Robinson, executive director of the Texas Medical Board, in her official capacity; and David Escamilla, County Attorney for Travis County, in his official capacity and as representative of the class of all county and district attorneys in the State of Texas with authority to prosecute misdemeanors; and their employees, agents and successors. The class is represented by Austin attorney Dicky Grigg.